— White House counsel Pat Cipollone, in a letter to House Democratic leaders, Oct. 8, 2019
“Even Salem witch trials didn’t use anonymous testimony. The accused had to be confronted by a witness willing to put their name and reputation behind the charges and then had to be available for cross examination. Ah, the Soviet Union had trials with anonymous, unnamed witnesses. Welcome to McCarthy II.”
House Speaker Nancy Pelosi is “not carrying it out in a fair process. … Think about if you went before a trial, but you couldn’t call any witnesses. This is exactly what she’s working through.”
— House Minority Leader Kevin McCarthy (R-Calif.), in an interview on Fox News, Oct. 3, 2019
President Trump’s lawyers and allies say House Democrats are running roughshod over his right to defend himself from impeachment.
As talking points go, this one is constitutionally illiterate.
Defendants in court have the right to legal counsel and to call witnesses. They have the right to examine the evidence against them and confront their accusers.
Impeachment in Congress is a different animal. The common analogy is that the House acts as a prosecutor filing charges, and then the Senate holds a trial.
That’s the process laid out in the Constitution, and the process House Speaker Nancy Pelosi (D-Calif.) and Democrats have followed thus far. If the House voted to impeach Trump, he would have the opportunity to mount a defense in a Senate trial, as President Bill Clinton did in 1999 after his impeachment.
It takes two-thirds of the Senate to remove an officeholder who has been impeached by the House. There’s no appeal.
Article I of the Constitution says, “The House of Representatives … shall have the sole Power of Impeachment.” To impeach someone, a majority of the House votes for a resolution explaining the allegations of wrongdoing, commonly referred to as “articles of impeachment.”
But the ultimate arbiter is the Senate. Article I says:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Article II sets the standard for removing an officeholder on impeachment charges: “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
There’s no hard-and-fast definition of “high crimes and misdemeanors.” Alexander Hamilton wrote in the Federalist No. 65 that it covers offenses “which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
That’s really it as far as constitutional rules and guidance on impeachment. “While the framers very clearly envisaged the occasional necessity of initiating impeachment proceedings, they put in place only a very general framework to guide future action,” according to the Senate Historical Office. The Supreme Court unanimously ruled in 1993 that the Senate had the “sole” power to try impeachment charges and that the courts could not step in to resolve disputes.
Why did the framers choose the Senate? In the Federalist No. 65, Hamilton wrote:
Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers?Could the Supreme Court have been relied upon as answering this description? It is much to be doubted. … The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.
When the president is impeached, it falls on the chief justice of the United States to preside over the Senate trial. The House designates members to serve as impeachment “managers,” akin to prosecutors. Briefs are filed by the accusers and the accused. The Senate hears evidence and takes testimony from witnesses. Senators may ask questions in writing. Then they vote up or down on the charges.
According to the nonpartisan Congressional Research Service: “At the trial, the House managers, who might be assisted by outside counsel, present evidence against the accused and could be expected to respond to the defense presented by the accused (or his or her counsel) or to questions submitted in writing by Senators.”
It’s up to the Senate to design specific ground rules, though. “When the Senate decided what the rules were going to be for our trial, they really made them up as they went along,” Gregory B. Craig, one of Clinton’s attorneys for his Senate trial, told the New York Times in 2017.
The most recent template was set in 1999 by Chief Justice William H. Rehnquist and the 106th Congress.
“Shortly after Rehnquist takes his chair elevated above the rows of wooden desks, he will ask senators to swear that they will render ‘impartial justice’ as jurors evaluating the fate of a president,” The Washington Post reported at the time. “That oath immediately distinguishes the Senate role from that of the House, since the Constitution gives the House the power to impeach, or indict, a public official, and reserves for the Senate the neutral role of determining whether those allegations are true and what should be done about them.”
Thirteen House Republicans served as managers in Clinton’s trial. The president’s defense team included at least eight attorneys. Witnesses gave testimony in closed, videotaped depositions that were later played for the senators, sitting as a jury. Clinton was not convicted. (President Andrew Johnson was impeached but not convicted in 1868. President Richard M. Nixon resigned in 1974 before the full House voted on articles of impeachment related to Watergate.)
What happened when the House Judiciary Committee approved the first article of impeachment for Nixon? “During the four days of general debate and amending of the article, the principal witness was the absent President himself,” The Post reported in 1974. “Time after time, committee members picked up transcripts of taped presidential conversations to read back the President’s words.”
The political debate in 1974 did not revolve around whether Nixon should be allowed to participate in the House proceedings, but whether articles of impeachment required specific citations of evidence.
Some Trump supporters say the House should hold a vote to authorize an impeachment inquiry, which was done for the Nixon and Clinton cases but has not happened for Trump. However, according to the Congressional Research Service, “In the past, House committees, under their general investigatory authority, have sometimes sought information and researched charges against officers prior to the adoption of a resolution to authorize an impeachment investigation.”
The CRS report, from August, also notes that House members could approve an impeachment resolution summarily on the floor but that “the House has always chosen to conduct an investigation first.”
Neither the White House nor McCarthy’s office responded to our questions.
In a lengthy statement, Pelosi spokeswoman Ashley Etienne said: “The Supreme Court has held in no uncertain terms that the ‘sole power’ given to the House regarding impeachment means that the House alone determines the rules of its impeachment proceedings. Thus, White House claims about what is legally or constitutionally ‘mandated’ ring hollow.”
“If the White House wants to work with the House, we are ready to do so,” Etienne said. “The speaker has said that we want to be and will be fair to the president. But the president’s claims regarding a supposed lack of due process are self-evidently in bad faith. Far from seeking to participate in the House’s inquiry, the president has evinced nothing but contempt for the House’s hearings and other investigative proceedings and has actively used his powers of office to block committees’ access to critical witnesses and evidence.”
Responding to Giuliani’s point about “anonymous, unnamed witnesses,” Etienne said much of what the intelligence community whistleblower alleged in a complaint has been corroborated by other sources. The whistleblower alleged that Trump improperly asked Ukraine to investigate former vice president Joe Biden, a potential Democratic opponent in the 2020 election.
“The House cannot and will not facilitate the president’s self-proclaimed interest in identifying and retaliating against whistleblowers whose identities are protected by law,” Etienne said. “That would chill whistleblowing concerning presidents, which this episode has proved is desperately needed.”
The Pinocchio Test
It is grossly misleading to say Trump is unable to call or cross-examine witnesses, or have counsel present, in the House impeachment inquiry. The Constitution says the Senate holds impeachment trials. The House, on the other hand, acts as the prosecutor. The founders thought about it, and that’s how they split their roles.
Especially bonkers is Giuliani’s comparison to the Salem witch trials and McCarthyism. But it should not go unnoticed that the White House counsel’s letter, though more sober in tone, makes the unfounded claim that House Democrats are violating Trump’s “constitutionally mandated due process” rights. The Supreme Court ruled in 1993 that impeachment proceedings are different from those in the criminal justice system and that judges could not referee impeachment questions.
These claims are worth Four Pinocchios.
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